CHAPTER 4 ASSESSMENT OF THE ADEQUACY OF IHL IN REGULATING THE
4.2 Drone Warfare Challenges
4.2.2 Transparency
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In view of the difficulty associated with identifying legitimate military targets, some states have adopted the practice of targeted killing, or signature strikes via armed drones. This is considered to be one of the ways in which high-value targets are identified, where the criteria utilised to rationalise the strike is not based on evaluable evidence of the rank of a particular belligerent, but rather on their definitive characteristics and behavioural patterns.540 This method is very often criticised as being too lax,541 and it is therefore desirable that clear legal guidelines should be developed in order to direct states during their proportionality assessments.
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requires of states to disclose the measures they have introduced to ensure compliance and respect for the rules under the conventions.544 From the above it is clear that a measure of transparency can thus be inferred from the obligation.545 In the light of the lack of an explicit requirement for transparency in IHL, it is useful to consider both IHRL and IL, since the notion is defined to a greater extent in these bodies of law, and could consequently assist one in determining what could be expected from the notion of transparency under IHL.546
Transparency in IHRL is founded on the obligation to investigate human rights violations, and to consequently give effective relief to the victims of these violations.547 Hence, those who are responsible for violations must be held accountable. Furthermore, with regard to freedom of expression, the right to information can further be identified as a factor supporting the requirement of transparency.548 Lastly, the justifications relating to the ''right to truth'', as a developing idea, are linked inherently to transparency in that it is the right of family members and close relatives, in conjunction with the community as a whole, to be provided with the truth as to grave infringements of human rights.549
IHRL recognises that there may be limits as to providing transparency, such as when a state's national security is concerned, but it is held that such limitations must be for a legitimate purpose.550 Additionally, it is argued that the limitation must be very narrowly interpreted and that the rule should drive the exception, instead of the
544 Pretorius Armed Drones: Transparency and Accountability under International Law 29.
545 Pretorius Armed Drones: Transparency and Accountability under International Law 29.
546 Sharma 2015 http://www.prix-henry-dunant.org/wp- content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf.
547 Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 110-112; see also Sharma 2015
http://www.prix-henry-dunant.org/wp-
content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf; Moorehead et al Out of the Shadows:
Recommendations to Advance Transparency in the Use of Lethal Force 110-112.
548 Sharma 2015 http://www.prix-henry-dunant.org/wp-
content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf; Moorehead et al Out of the Shadows:
Recommendations to Advance Transparency in the Use of Lethal Force 110-112.
549 Sharma 2015 http://www.prix-henry-dunant.org/wp-
content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf; Moorehead et al Out of the Shadows:
Recommendations to Advance Transparency in the Use of Lethal Force 110-112.
550 Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 111.
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other way around.551 When the proportionality of a decision to maintain secrecy is considered, the subsequent impact of the decision on other rights and duties, as well as the effect thereof on the efficacy of an investigation, and on the victims' rights to remedies, must be taken into account.552
In IL, states bear a specific obligation under the UN Charter to report to the Security Council any force used in the exercise of self-defence in the jurisdiction of another state where they are not already partaking in armed conflict, or when they direct force against new parties in an armed conflict.553 This is regarded as a crucial part of the accountability states bear towards the Security Council, the purpose being to ensure that such actions during armed conflicts are in fact lawful and that these actions do not hinder the authority and responsibility held by the Security Council to intervene when it regards it as necessary so as to preserve or restore peace and security internationally.554 Consequently, it is evident that IL requires transparency from states when they employ force.
Transparency concerning the use of lethal force against another state (such as in the case of a drone strike) is crucial for various reasons. Firstly, it is an essential principle of the ROL: states must, on an international level, exercise transparency in order to further and uphold the international legal order and to ensure state sovereignty. The UN has stated in the past that the ROL necessitates legal transparency, and as a consequence it demands laws which are promulgated publicly.555 Concerns as to the ROL in this regard are heightened when states elect to apply lethal force, which action would heighten the need for transparency.556 An important remark in this regard is that of The House of Lords' Joint Committee on
551 Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 111.
552 Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 111.
553 A 51 of the Charter of the United Nations (1945).
554 A 51 of the Charter of the United Nations (1945); Moorehead et al Out of the Shadows:
Recommendations to Advance Transparency in the Use of Lethal Force 110.
555 A 19 of the International Covenant on Civil and Political Rights General Comment 34 (2011).
556 Ku and Jacobson Democratic Accountability and the Use of Force in International Law 3, 8.
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Human Rights, where it held in its report,557 as to the UK's targeted killing policies, that:
If the availability of drone technology is not to lead to a significant lowering of the level of protection for the right to life, it is important to ensure that there is absolute clarity about the legal frameworks that apply to the use of drones for targeted killing, and that all those involved understand exactly what those legal frameworks require of them.558
In addition, transparency regarding the application of lethal force could potentially assist in deterring harm, because the possibility of the public exposure of their wrongdoings could make government actors more compliant with the law.559 Furthermore, transparency facilitates oversight, and is required in order for meaningful accountability to ensue when violations occur.560 Lastly, transparency enables informed public debate and allows for democratic accountability to take place.561
Recently, the need for transparency regarding drone strikes has been exemplified by the various calls for greater transparency during drone strikes by numerous stakeholders in IL. For instance, Alston562 in a report563 to the UNHR in 2010 dedicated an entire portion of the report to the requirements of both transparency and accountability and was critical of the failure of states to disclose their legal rationale for the performance of targeted killings, the consequences of these targeted strikes in view of the subsequent harm caused to the civilians involved, and
557 The Government's policy on the use of drones for targeted killing 21.
558 The House of Lords Joint Committee on Human Rights The Government's policy on the use of drones for targeted killing 21.
559 Roth 2013 https://www.hrw.org/news/2013/03/11/what-rules-should-govern-us-drone-attacks;
Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 106.
560 Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 106.
561 Levine 2013 https://www.3quarksdaily.com/3quarksdaily/2013/02/drones-threaten-democratic- decision-making.html; Moorehead et al Out of the Shadows: Recommendations to Advance Transparency in the Use of Lethal Force 106.
562 Current Special Rapporteur on extreme poverty and human rights; see UNHR 2018 https://www.ohchr.org/en/issues/poverty/pages/srextremepovertyindex.aspx.
563 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston A/HRC/14/24/; see UNHR 2010
https://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf.
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the legal safeguards available in this regard.564 This position was reiterated by Heyns.565 Melzer566 further held that a lack of both transparency and accountability in relation to the use of armed drones during armed conflicts constitutes a breach of the ROL and potentially threatens international security. McDonald567 remarks that transparency in the investigating procedures and the dedication of sufficient funds to the process of ensuring that mistakes are recognised could potentially improve the perception of the community as to the use of drones during armed conflicts.
Hence, we may discern that the concerns as to transparency relate to the legal rationale for the drone strike, the identity of these targets, as well as the disclosure of information about civilian deaths and ensuing investigations.568 In broader terms, the issue of providing transparency in drone strike operations evidently requires the provision of relevant, timely, accessible, and accurate information as to each individual drone attack.569
To illustrate the need for transparency in drone strikes, it is useful to consider the most salient example in the drone warfare debate regarding the issue of transparency: the US targeted killing programme. This programme has been subjected to severe criticism in this regard on an international level. It is held that few persons outside of the exclusive circle of policymakers know what the process and rules involve regarding the making of targeting decisions during drone strikes.570 Consequently, it is argued that greater oversight should exist regarding the policies utilised to make the determination of who should be targeted, how and why they are targeted, as well as what measures are in place to provide protection to civilians
564 Sharma 2015 http://www.prix-henry-dunant.org/wp- content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf.
565 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Chris Heyns A/68/382.
566 Melzer Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare 4.
567 McDonald Drones and the European Union: Prospects for a Common Future 1.
568 Sharma 2015 http://www.prix-henry-dunant.org/wp- content/uploads/Recherche_2015_VAISHALI_SHARMA.pdf.
569 Dorsey and Bonacquisti Towards an EU Common Position on the Use of Armed Drones 27.
570 Holewinski "Just Trust Us: The Need To Know More About the Civilian Impact of US Drone Strikes" 61.
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during targeting.571 Given the need to protect and defend national security, one is able to understand a justifiable amount of secrecy, especially in the light of the goal of attaining military advantage. Nonetheless, it remains desirable that the details of the targeted killing programme, such as with all other drone programmes, and the details of the decisions made to employ drones in effecting strikes abroad, should be made more transparent, if not to the greater public, then at the very least to Congress.572
It is also deemed essential that improved transparency should exist as to certain issues such as the elements of the targeted killing process, the human rights and IHL training provided to drone operators, and the application of the principles of IHL before and during the execution of a strike.573 Furthermore, it is desirable that clarity be obtained regarding how the US administration elects to define combatants and civilians and how civilian casualties are both assessed and tracked; and it is desirable that information regarding the decision as to who will be targeted, and why they are chosen, should be made transparently available in order for civilians to be informed of the behaviour that might cause them to be targeted, so as to enable them to protect themselves.574 The above recommendations could be regarded as valuable in a general sense. They relate not only to the US’s and the UK's targeted killing programme, but they could potentially act as useful considerations and guidelines for all states employing armed drones in combat.
One may glean from the above that although IHL does not explicitly demand transparency from states during an armed conflict, a degree of transparency is required in order to ensure that states fulfil their IHL obligations. However, there is an evident lack of transparency pertaining to drone strikes, and it is arguable that this deficiency could weaken the incentives to fulfil certain duties, such as precisely
571 Holewinski "Just Trust Us: The Need To Know More About the Civilian Impact of US Drone Strikes" 61.
572 Holewinski "Just Trust Us: The Need To Know More About the Civilian Impact of US Drone Strikes" 61.
573 Holewinski "Just Trust Us: The Need To Know More About the Civilian Impact of US Drone Strikes" 61.
574 Holewinski "Just Trust Us: The Need To Know More About the Civilian Impact of US Drone Strikes" 61.
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determining civilian deaths, which would subsequently affect the process of accountability, in that it would weaken the victim identification process necessary for reparation in terms of non-combatant injury or casualty.